ABSTRACT.

The theory of separation of power means that a different body of persons is to administer each of the three departments of government. That no one of them is to have a controlling power over either of the others. For the purpose of preserving the liberty of the individual and for avoiding tyranny separation of power is necessary. In Nigeria, how has this theory been effective either during the military rules or the civilian administration? This paper is aim at examining the working of separation of powers in Nigeria.

INTRODUCTION.

The guarantee of liberty in any given government to the people is the practice of the theory of separation of powers. This theory according to Gettel implies that, the three functions of government “should be performed by different bodies of persons; each department [the legislative, the executive, and judiciary] limited to its own sphere of action, and within that sphere should be independent and a supreme [chaturved:2006:282]”.

The theory of separation of powers is predicated on the premise that; if a single group holds all the three powers of the government, they are bound to have unlimited powers. They could prescribe any law arresting say, criminals. Because, they exercise unlimited powers pronounce the criminals guilty without recourse to fair trial. It is through the separation of powers that any given group cannot at the same time prescribe, execute and adjudicate in any case. Otherwise, there will be no justice. That is why, it is only through the combination of all these departments that a government can use force especially in a military rule.

The term “separation of power” originated with Baron de Montesquieu, a French enlightenment writer. Nevertheless, the actual separation of powers amongst different branches of government can be traced to ancient Greece. The framers of the American constitution decided to base the governmental system on this theory of separation of powers whereby the legislative, executive and judiciary branches will be separate from each other. This gave rise to the idea of checks and balances on each other. As a result, no one branch can gain absolute power or abuse the power given to them like in despotic military regimes.

The model of separation of powers was first developed in ancient Greece and gained recognition by the Roman Republic as part of the unmodified constitution of the Roman Republic. In this model, the state is divided into branches. This also, forms the concept of separation of church and state as is the practice in many countries of the world depending on the applicable legal structures and the prevailing views towards the exact roles of religion in the given society.

There is no gainsaying the fact that the famous doctrine or principle of separation of powers is as old as man, the point is, separation of power has been in existence since man came to the society. It is apposite to state that the doctrine of separation of powers was in existence arid strictly observed in this country before the advent of the British. This foregoing position can be demonstrated when a recourse is made to the old Oyo empire, where there were in existence the Alaafin, Oyomesi, the Ogboni among other traditional title holders who took charge of the administration of the said empire. There was a manifest undoubted separation of power between the Alaafin who was the head, the Oyomesi, and the Ogboni, this brought about the necessary checks and balances, so that power is not concentrated in the hands of the Alaafin, which is capable of being misuse or abused.

The point above is that, the principle of separation of powers is not strange to the African society and therefore, the principle cannot be said to be imbibed or imported from the white man but in its formalized theoretical notion it is an imported value into our body of polity.

MEANING AND ORIGIN OF THE CONCEPT.

Any concept of government that is hinged on the rule of law and democracy and especially the presidential system of government as practiced in Nigeria must consist of the three great arms of government, namely; the executive, the legislature and the judiciary. As Aihe in his book, rightly stated that such division of labor is a condition precedent to the supremacy of the rule of law in any society.

It must be noted that; the doctrine of separation of powers has been developed over the centuries. The evolution of the concept of separation of powers can be traced to the British parliament’s gradual assertion of power and resistance to decrees during the 14th century. James Harrington, an English scholar was one of the first modern philosophers to analyze the doctrine of separation of powers. Harrington in his essay “Common wealth of Oceana” (1656), built on the works of earlier philosophers like Aristotle, Plato and Machiavelli, described Utopian political system that included a separation of powers in his Second Treatise on Government (1690), John Locke an English political theorist, gave the concept of separation of powers more refined treatment. John Locke argued that the legislative and executive powers were conceptually different, but that it was necessary to separate them in government institutions. However, in Locke’s conception, Locke’s judicial power played no significant role.

The modern idea of the doctrine of separation of powers was vigorously explored in the “Spirit of Laws” (1748) by Baron de Montesquieu a French political writer in his work. He based his exposition on the British constitution of the first part of the 18th century the way he understood it. As a doctrine, it has been interpreted as “where an individual occupies the position of both the executive and the legislature, there is danger of the legislature enacting oppressive laws which the executive will administer to attain its own ends”. Montesquieu in the process outlined a three-way division of powers in England amongst the parliament, the king and the courts, even though such a division were not in existence at that time. Montesquieu apparently believed that the stability of the English government was due to this practice of separation of powers despite the fact that he did not use the word “separation”.

It must be realized that Plato, Aristotle, Harrington, Locke and Montesquieu and other commentators saw the concept of separation of powers as a way to eliminate the arbitrary powers to check dictatorial tendencies.

A Nigerian renown constitution lawyer, Professor Nwabueze while emphasizing the importance of the principle of separation of powers says: –

concentration of governmental powers in the hands of one individual is the very definition of dictatorship and absolute power is by its very nature arbitrary, capricious and despotic limited government demands therefore, that the organization of government should base on some concept of structure, whereby the functions of law making, execution and adjudication are vested in separate agencies, operating with separate personnel and procedure. We are not prepared, write vile, ‘to accept that government can become, on the ground of “efficiency”, or for any other reason, a single undifferentiated monolithic structure, nor can we assume that government can be allowed to become simply an accidental agglomeration of purely pragmatic relationships. By separating the function of execution from that of law making, by insisting that every executive action must, in so far at any rate as it affects an individual, have the authority of some law, and by prescribing a different procedure for law making the arbitrariness of executive action can be effectively checked[1]

Hence, separation of powers is presently understood to mean that, none of the legislative, executive and judicial powers is able to interfere with the others. For example, the judges should be independent of the executive and legislative theory or that the same persons should not hold posts in more than one of the three branches. For example, that one branch of government should not exercise the functions of another. That is, the executive should not make laws which fall within the purview of the legislative.

That be as it may, closely related to this theory is the “doctrine of checks and balances”. This doctrine states that, governmental power should be controlled by overlapping authority within the government and by giving citizens the right to criticize state actions and remove officials from office.

IS SEPARATION OF POWERS FEASIBLE?

It must be noted that, separation of powers is almost impossible to carry out in actual practice. Firstly, under section 4 (8) of the 1999 Constitution of the Federal Republic of Nigeria, the exercise of the legislative powers of both National Assembly and State Assembly “shall be subject to the jurisdiction of the court of law and of judicial tribunals established by law”.[2] The second part of the provision is to the effect that the National Assembly or a House of Assembly “shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”.[3] This completes the circle of an effect check on the powers of the legislature and also positions the judiciary as the custodian of the rule of law.

This declaration is consistent with the view of Mustapha, (JSC) in Inakoju v. Adeleke which is to the effect that:

The court has the jurisdiction and the competence and indeed are duty bound, to exercise their jurisdiction to ensure that the legislature comply with constitutional requirement.

Also, the Chief Justice of Nigeria is empowered by virtue of section 46 (3) of the 1999 Constitution of the Federal Republic of Nigeria, to make rules with respect to the practice and procedure of a High Court for the purpose of enforcement of Fundamental Rights. This has made the judiciary a promulgator instead of an interpreter of the law.

The President of the Federal Republic of Nigeria is empowered to make regulations, provided under section 32 of the constitution, concerning citizenship and immigration matters. Whereas (2) of section 32 requires the President to lay before the National Assembly such regulations, the promulgating authority here is the executive (that is, the President) and not the legislature.

Also, the President, or the Governor as the case may be, is empowered under sections 175 and 212 respectively to pardon convicted persons or to exercise his prerogative of mercy, by remitting, blotting out or extinguishing a convict’s sentence imposed by the judiciary. By section 292 of the 1999 constitution, the President, alongside the senate or the Governor alongside House of Assembly may remove a judicial officer for stated misconduct. Not only that, section 315 of the constitution, allows the President or a Governor to modify an existing law.

In addition, section 160 and 204 respectively of the 1999 constitution, allows certain executive bodies established under the constitution to regulate their own procedure, confer powers and impose duties on any other or authority for the purpose of discharging its functions; provide the approval of the President or the Governor, as the case may be is obtained beforehand. The constitution also allows the President or the Governor to attend any meeting of the National Assembly or State House of Assembly, respectively, either to deliver an address on national and state affairs or to make such statements on policy of government as he considers to be of national or state importance. Sections 67 and 108 of the 1999 constitution respectively.

The legislative is empowered under sections 143 and 188 of the 1999 constitution to initiate, carryout and conclude the impeachment proceedings of the President or the Vice-President, the Governor or the Deputy- Governor. Thus in Attorney of the Federation and Ors. V. Atiku Abubakar and Ors.[4] The Supreme Court stated that:

Impeachment or removal of the President or Vice-President from office by the National Assembly is a strong political weapon and solution to political problem that may arise in the Presidency either in the discharge of the constitutional function or conduct of the personality involved.

Additionally, although a panel is to appointed by the Chief Justice of Nigeria or the Chief Judge of a State, as the case may be, to carry out certain investigations such a panel will still submit its report to the legislature. Subsection 10 of both sections oust the court’s jurisdiction to enquire into the outcome of the impeachment proceedings.

The legislature must confirm all executive appointment of ministers and commissioners, who form an integral part of the executive. The National by virtue of the provision of section 80 of the constitution has authority over public funds and to determine the remuneration of the members of the executive and the judiciary (section 84). However, such remuneration must be charged on the consolidated revenue fund. It must also not exceed what the Revenue Mobilization and Fiscal Commission prescribe.

The constitution also empowers the legislative to conduct investigations (which are strictly a quasi-judicial act) in order, amongst other things, to expose corruption, inefficiency or wastes in the execution or administration of funds appropriated by it.[5]

The President can exercise veto powers over laws made by the legislature, but such can be overruled by two-thirds majority of the National Assembly[6]. However, in National Assembly V. President of the Federation of Nigeria[7] the Supreme Court opined that such a veto can only overturned by a two-thirds majority of the whole House and not a quorum and there must be a full reconsideration of the voted Bill.

While legislative confirmation is needed for appointment of Chief Justice of Nigeria,[8] Justice of the Supreme Court,[9] Chief Justice of a State,[10] among others, certain judicial officers are empowered under section sections 236, 248, 259,264,269, 274, 279 and 284 of the 1999 constitution, to promulgate rules for regulating the practice and procedure of the respective courts, such judicial officers superintend.

By and large, it is trite to say in view of the above constitutional provisions, that separation of powers was not intended to be water tight or exclusive. This view is supported by the opinion of Professor Ojo, which is to the effect that:

A complete separation of powers is neither practicable nor desirable for effective government. What the doctrine can be taken to mean is the prevention of tyranny by the conferment of too much power on any one person or body and the check of one power by another”.[11]

Accordingly, the principle of separation is feasible only to some extent as the constitution has allowed for inter-dependence, and an expressly built in system of checks and balances.

SEPARATION OF POWERS UNDER THE PREVIOUS NIGERIAN CONSTITUTIONS

The review of the separation of powers under the 1999 constitution cannot be effectively carried out without a recourse to the previous constitutions, like the 1960 Independent Constitution, the Republican Constitution of 1963 and the 1979 Constitution.

Therefore, to do justice to this discuss, an attempt will be made to examine the principle of separation of powers as entrenched in those constitutions aforementioned vis-a-vis its effectiveness at that point in time. To achieve this, the paper shall examine the topic under civilian regimes 1960 and 1963, civilian regimes of 1979 and 1999 respectively.

UNDER CIVILIAN REGIME 1960 AND 1963

The constitution that were in place during the first republic were the independent constitution of 1960 and the 1963 republican constitution. These constitutions provided for an obvious separation of powers though not as sharp as that of the 1979 constitution. For example, the office of the Governor –General and the President under the 1960 and 1963 constitutions respectively was established pursuant to Chapter IV of both constitutions. Chapter V of the aforementioned constitutions provided for the parliament while Chapter VIII ousts the judicature. The manner of exercising of the executive authority of the President and the executive authority of the Governors were contained in Chapter VI.

It should be noted that, there was no sharp or elaborate separation of powers under those two constitution as mentioned above.  The reason for this is not far-fetched, it is axiomatic that the independent constitution was promulgated vide an order in council made by the colonial masters for the colony of Nigeria while the 1963 constitution merely effected a change from monarchy to republicanism. This made a wide difference between the 1979 constitution which was fashioned in line with American constitution and both the independence and republican constitution of the first republic. The two constitution were based on the British model of parliamentary system of government. It should be noted that in the operation of the 1963 constitution the civilian government also displayed its disdain for the principle of separation of powers when the federal parliament, passed the constitution of western Nigeria. [ Amendment law] reversing by legislation a privy council judgement which found that chief Akintola had been validly removed as the premier of western Nigeria. This act justifies the fact that, the disregard of the principle is not peculiar to military regimes alone. Under the 1960 and 1963 constitution, members of the executive arm of government must be elected into the respective houses either at the federal or regional level before qualification to hold executive positions. This was a clear departure from the position in the 1979 constitution where provisions were made that an elected legislator that accepted an executive post should relinquish his elective position.

UNDER 1979 CONSTITUTION.

The 1979 constitution which was in operation during the second republic provided for a clear separation of powers. This is contained in section 4, 5, and 6 of Chapter V of the said constitution which established the National Assembly, the composition of the senate, the House of Representatives.  President of the senate and so on. While chapter VI provides for the executive arm of government and chapter VII contained the aspect relating to the judicature. This constitution as earlier mentioned provided for distinct and specific functions for each organ of government, unlike the previous constitutions. Here it can be seen that the executive under the 1979 constitution is to execute the law made by the legislature and should not venture into law making. The legislature is to make laws while the judiciary is to adjudicate and interpret the laws made by the legislature. None of the government should dabble the into the arena outside it purview of function. The separation of power enshrined into the 1979 constitution was also given a judicial interpretation in the case of Attorney General of Bendel v. Attorney General of the Federation and 22 Ors, Where the supreme court held: in my view the legislative powers commence when the bill is introduced in either house of the national assembly and ends when the Bill is submitted to the president for his assent. I hold the view that what the president in assenting to a bill, is performing executive powers within the legislative processes. If, in the process of the exercise of legislative powers by the national assembly, there is such a constitutional defect as to; as to lead loan interpretation to the effect that a bill was not passed according to law, that is, it does not follow the procedure laid down under the constitution for the passing of a bill, then the bill which has passed through such exercise is null and what the president assents to, in exercise of executive powers within the legislative process is a nullity. The supreme court in exercise of its jurisdiction under section 212, when there is a dispute under the section, could adjudicate on the issue. And this constitute the limitation on the sovereignty of the legislation’[12]

The whole essence of the doctrine is to give room for checks and balances and by so doing, encourage healthy influence or control by one over the activities of others is accepted. As rightly put by Aihe and Oluyede in their book 15; what the whole idea means is that neither the legislative, executive nor judiciary should exercise the whole or part of another’s powers, but does not excludes influence by one over act of another’.

The doctrine of separation of powers under the 1979 constitution was not strictly followed by the politicians in power as well, like their military counterparts. The civilian regime also strove hard to render nugatory the provision of the constitution as rightly pointed by prof. Nwabueze in his book18: where he declared that, the legislative arm of government was not independent of the executive arm during the second republic, that is, October 1979-December 1972. These according to him was sequel to the dominate to the party in power, particularly the president and governor, who by their position and influence, where in a position to use the power of patronage to subdue members of the legislature. This took the form of award of contract appointment to boards and straight forward bribery and cash land allocation, distributorship of scarce commodities, provision of social amenities, like roads, schools, hospitals, pipe born water to the member constituencies. Therefore, the 1979 constitution no doubt made an explicit and elaborate provisions for separation of powers like with united states counterparts which was its model. However, those that operated the constitution as indicated above contributed to its ineffectiveness at that point in time.

SEPARATION OF POWERS UNDER THE 1999 CONSTITUTION

Consequent upon the controversies surrounding the making of the 1999 constitution, unlike the 1979 constitution which gained overwhelming acceptance of the vast majority of Nigerians. An attempt will be made to look at the 1979 constitution visa vis 1999 constitution in a bid to see if there’s any remarkable difference or innovations, especially as regards the provisions of those constitutions that deals with separation of powers. In the same vain, an attempt will be made to examine briefly those provisions under the 1999 constitutions and make necessary comments on them.

Furthermore, an attempt shall be made to succinctly appraise the workability and the effectiveness of the principles of separation of powers as enshrined in the 1999 constitution under this political dispensation.

The 1999 constitution is a replica of the 1979 constitution with the introduction of few new provisions noticeable therein, such as environmental objectives, duties of the citizens, dual citizenship, right to acquire and own immoveable property anywhere in Nigeria.[13] Also, there are provisions for additional qualification of membership of parliaments both at the federal and state level, recall and remuneration and an elaborate provision on political parties.[14] In the aspect of judiciary, there is a creation of the national judicial counsel which see to the appointment and removal of judicial officers among other responsibilities. Apart from the few new provisions and innovations contained in the 1999 constitution, one can state without mincing words that the 1999 constitution is a verbatim reproduction of the 1979 constitution. In view of the forgoing, the provisions of the 1999 constitutions that relate to the principles of separation of powers remains unchanged as we have them under the 1979 constitution.

The Legislative Powers: –

Section 4 of the constitution provides as follows: the legislative powers of the federal republic of Nigerian shall be vested in a National Assembly for the Federation, which shall consist of a senate and a house of representative. The National assembly shall have powers to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part one of the second schedule to this constitution. The legislative powers of a state shall be vested in the House of assembly of the state. The House of Assembly of a state shall have powers to make laws for the peace order and good government of the state or any part thereof with respect to the following matters, that is to say;

  1. any matter not included in the exclusive legislative list set out in the part one of the second schedule to this constitution.
  2. any matter included in the concurrent legislative list set out in the first column of part two of the second schedule to this constitution to the extent prescribed in the second column opposite thereto, and
  3. any other matter with respect to which it is empowered to make laws in accordance with the provisions of these constitution.

In view of the above provisions of the 1999 constitution it is unequivocally stated that, the functions or powers of law making are vested in the national assembly and houses of assembly of the state for the federation and state respectively. However, the constitution also provides for a clear demarcation between the areas which can be legislated upon by the national assembly and the state house of assembly. These are contained in the exclusive and concurrent legislative list.[15] The national has exclusive powers of law making with respect to any matter included in the exclusive legislative list, to the exclusion of the houses of assembly of the state, while both the national assembly and the houses of assembly shall exercise their legislative powers on those matters contained in the concurrent legislative list.

A closer at the legislative list especially the exclusive legislative list reveals that the federal government enjoys overwhelming power to legislate virtually on every subject. This is a clear indication that the federal is dominating at the expense of the state, this against the principle of federalism.

Those items listed in the exclusive legislative list of the 1999 constitution are now 68 compared to the 1979 constitution with 66 items and in contra distinction with the 1960-1963 constitutions with just 45 items. The argument at this juncture is that some of the matters in the exclusive legislative list ought to be within the competence of the state alone. It is also observed that some items contained in the exclusive legislative list should ordinarily be placed in the concurrent legislative list. It is argued in some quarters that the issues involving borrowing of money by a state, local government, company or any other entity should be placed in the concurrent legislative list; so that both the federal and state governments can legislate on those matters.

In my own view, issues like evidence issued in court contained in item 23, labour, trade unions, industrial relations in item 34 and the local government elections ought to be in the concurrent legislative list instead of the exclusive list. The reason is, why should federal arm of government become an alpha and omega which must have a say on every aspect of life of this country? There should be avenue where our co-existence as a nation should be reviewed so as to pave the way for proper and true federalism.

Executive Powers: –

The 1999 constitution provides inter alia as follows: subject to the provision of this constitution, the executive powers of the federation shall be vested in the president and may, subject as aforesaid and to the provisions of any law made by the national assembly, the exercise by him either directly or through the vice president, and ministers of the government of the federation or officers in the public service of the federation, and shall extend to the execution and maintenance of this constitution, all laws made by the national assembly and to all matters with respect to which the national assembly has, for the time being, powers to make laws. Subject to provisions to this constitution, the executive powers of the state, shall be vested in the governor of that state, and may subject, subject as aforesaid and to the provisions of any laws made by a house of assembly, be exercised by him either directly or through the deputy governor and commissioners of the government of that sate or officers of public service of the state: and shall extend to the execution and maintenance of this constitution, all laws made by the house of assembly of the state and to all matters with respect to which the house of assembly has for the time being powers to make laws.

In view of the above constitutional provision, it can be rightly said that the powers of the executives neither encompasses law making, nor adjudication but strictly limited or legislature. The executive powers of the federation are conferred on the president and according to the constitution, can be delegated to the vice president, ministers or officers in the public service of the federation. While the state governors shall exercise the executive powers of the state either by himself or through the deputy governor, commissioners or officers in a public service of the state.

Therefore, under the 1999 constitution like the 1979 constitution there is unambiguous provisions for separation of powers among the three arms of government which the legislature, the executive, arid the judiciary their distinct are explicitly spelt out in the constitution, and on no account should one carry out the function of another save and permitted by the constitution itself.

Judicial Powers: –

The constitution makes extensive provisions for the judiciary as, the judicial powers of the federation shall be vested in the court to which this section relates, being courts established for the federation. The judicial powers of a state shall be vested in the court to which this section, being court as established subject as provided by this constitution for a state. The judicial powers vested in accordance with the foregoing provisions of these section shall extend not withstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law; shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceeding relating thereto, for the determination of any question as to the civil rights and obligation of that person.[16] The judiciary as the third arm of government exercise its powers of adjudication and interpretation of the constitution and law made by the legislation through the courts created by the constitution and other courts as may be established by the national assembly or any house of assembly. Therefore, the judiciary and courts may be used interchangeably as they imply the same thing. As an addendum to my position that, the function of the three arms of government are distinct, one cannot find in this aspect of the constitution related to judicial powers anything connected with the functions of other two branches pf government. This is an indication that the constitution as it is today though not generally acceptable to populace still made ample provisions for a clear separation of power among the legislature, the executive and the judiciary. And unless reviewed, as the mechanism of that is being set in motion by the constitution of some committees by the president and the national assembly to look into it. The constitution provides as follows: the 1999 constitution will remain in operation as our ground norm in this country despite whatever anomalies that is surrounding its existence. At this juncture, it is important to state that, despite the clear separation of powers provided for under the 1999 constitution, which distinctly made provisions for the respective functions of the three arms of government interdependent among the aforementioned arms of government is desirable in other to ensure checks and balances. As rightly pointed out, no man is an island of himself, the legislature, the executive and judiciary must relate and cross parts in the discharge of their functions, towards ensuring good governance in the interest of the populace that voted them into power and which must reap the dividends of democracy.

In view of the above, there is a need for interaction and control of one arm of assembly not to make laws to oust the jurisdiction of the court. The legislature is also estopped from making any law relating to the criminal offences which have a retrospective effect. In other words, the exercise of their legislative powers are made subject to the jurisdictions of the court of law.[17] It was in light of the forgoing provision of the constitution that the supreme courts condemned the promulgation of the decree purporting to oust the jurisdiction of the courts during the military regime in the case of Attorney General of Western states v Ors,[18] amongst other authorities to that effect. Definitely such an attitude will be vehemently condemned during the civilian dispensation.

Even though the tree arms have separate powers but there is no water tight compartment in between them. There are areas of the constitution which makes interaction between the three arms inevitable for the successful execution for the continuance of the provisions of the constitution. This is why the president, though the commander-in-chief of the armed forces of the federation cannot declare war without the prior approval of the legislature at the same time legislature, even the judiciary must request for any security agents for their protection from the president. Another area of interest is the money bill which can only emanate from the executives, it must pass through the legislature before final assent by the executive. But if the president within 30 days after the presentation of the bill to him, fails to assent or where he withholds assent then the bill shall again be presented to the national assembly sitting at a joint meeting, and if passed by a two third majority of the members of both of the houses at the joint meeting, the bill shall become law and the assent of the president shall no longer be required.

The purport of the elucidation of the manner and how the three arms of government relate with one another, is to draw the necessary inference that, albeit, the three arms must exercise control over the others. This position as discussed earlier on depicts that, neither the legislature, the executive nor the judiciary should exercise the whole or an integral part of another’s powers as conferred upon them by section 4, 5, and 6 of the 1999 constitution. Be that as it may, this does not exclude influence or control by one over the acts of another and ensure the desired checks and balances.

CONCLUSION/SUGGESTIONS

In conclusion, separation of power provides a basis for the adoption of structure processes and control which protects liberty now and in the future. It guards against broad spectrum of ill like absurd judgements avaricious and ambitious self-serving behavior and inefficient performances of functions. As our new system of government involves new conventions, political practices and events at times needs legal rules. Will need to be devised to protect the liberty of the people and our nascent democracy. The doctrine of separation of powers therefore provides the justification for these measures and helps to determine their nature and scope. Apparently, there is the need to monitor our political system, be vigilant about our liberty and advocate new measures when the liberty is threatened.

The executives and the legislature at federal and state levels are urged to close ranks and work as a team in a bid to meet the aspirations and yarning of the masses. It is by so doing that they will justify the confidence repost on them by the electorate that voted them into power. There must be mutual respect between the executive and the legislature since honor begets honor, one must not make an unwanted incursion into the functions of another but to work together as partners in progress.

It is suggested therefore that; the state should adhere to the theory of separation of powers as is the practice of other democratic states in the world. Taking account of our historical past and the urgent need to modernize where necessary. Any dictatorial tendency should be nipped on the bud. Secondly, it will help to dispense with executive usurpation of powers, checks corruptions of elected officials and manipulation of electoral processes.

It is also suggested that, provisions should be added for a residual legislative list. This will eliminate the conflict between the federal and state government on the area of their legislative competence. Also, more powers should devolve to the state and local government as against the position now.

It is also suggested that in other to practice a true federalism, like what is provide in the first republic, states should have their constitutions but to be made subject to the national constitution.

Also, some of the items contained in the exclusive legislative list referred to in this paper, which ought to be in the concurrent list should be reviewed and put in the concurrent list.

Finally, the independence of the judiciary should be granted at all times. Also the judiciary must be properly funded. The judiciary should attain hundred percent autonomy for all its activities.

REFERENCES

  • APPANDORAI, A [2003]. THE SUBSTANCE OF POLITICS: NEW DELHI: OXFORD UNIVERSITY PRESS
  • A, OJO, “SEPERATION OF POWERS IN A PRESIDENTIAL GOVERNMENT” [1981] PUBLIC LAW JOURNAL 105
  • O. NWABUEZE, THE PRESIDENTIAL CONSTITUTION OF NIGERIA [LONDON: SWEET AND MAXWELL, 1981] AT 32.
  • DURU, ONYEKACHI WISDOM CEAZAR, SEPARATION OF POEWERS UNDER THE NIGERIAN CONSTITUTION.
  • FRN [1999]. THE 1999 NIGERIAN CONSTITUTION. KADUNA: FEDERAL GOVERNMENT PRESS.
  • MONTESQUIEU, C.L [1949]. THE SPIRIT OF LAWS, 2ND HALFOR
  • MONTESQUIEU, ESPIRIT DES LOIS, BOOK XI, CHAPTER WHAT IS THE PRACTICE IN TODAY’S WORLD? OR THE THEORY OF SEPARATION OF POWERS: A CRITQUE. VI: [NO. ed.: 1749: VOL. I, P.219.
  • OSAI, O. JASON [2007]. INTRODUCTION TO POLITICAL SCIENCE, A NIGERIAN PORT HARCOURT: OSAI INT’L PUBLISHERS LTD.
  • SABINA, G.H.A HISTORY OF POLITICAL THEORY; P.559
  • WADE AND PHILIPPS CONSTITUTIONAL AND ADMINISTRATIVE LAW 9TH EDITION BY BRADLEY

[1] The Presidential Constitution of Nigeria [1982] pp. 32-33.

[2] Senator Abraham Adesanya V. President of Nigeria, (1981) 2NCLR, 358, it was decided inter alia by majority of the Justices of the Supreme Court that the court have no power to challenge an Act of the legislature except in certain circumstances, for example, where civil rights are violated. Justice Idigbe in that case commented that, the circumstances in which the judicial power of the court under section 6 (6) (b) can be exercised by the court to pronounce on the constitutional validity of any legislation must be limited to those occasions in which it has become necessary for it, in the determination of a justifiable controversy or case, based on bona fide assertion of right by adverse litigant before it, to make such a pronouncement. The court does not possess general veto power over Acts or legislations by the National Assembly. Its powers are supervisory and can only be properly exercised in the circumstances above.

[3] In Honorable Godwin Jideonwu and Ors V. Governor of Bendel State and Ors. (1981) 1NCLR,4, the High Court held inter alia that the constitution clearly sets out the powers of the three arms of government, and if the legislature passes any law which is beyond its competence, and which it has no jurisdiction to pass, whether or not it was passed by all the members of the house, any member of the house or the public who is affected can challenge it in court, and nothing prevents the court from setting it aside and declaring it ultra vires the legislature. Indeed, nothing prevents a court of competent jurisdiction from hearing and determining matters that have been discussed in the House. In Attorney General of Bendel State V. Attorney General of the Federation & 22 Ors. (1982) 3NCLR,1, the court held inter alia that by virtue of section 4 (8) of the 1979 constitution, the courts of law in Nigeria have the duty and power to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the constitution. If there are such infractions, the courts have the power to declare any legislation passed pursuant to it unconstitutional and invalid: Bello V. Sanni & Ors. (1982) 3NCLR, 831.

[4] (2007) 10NWLR, (pt. 1041) 1 at 125 (para. E-f)

[5] Section 88 Federal and Section 128 State

[6] See Section 58 and 159 of the 1999 Constitution

[7] (2003) 41WRN, 94

[8] Section 231 (1) 1999 Constitution

[9] Section 231 (2) 1999 Constitution

[10] Section 271 (1) 1999 Constitution

[11] Ojo, A. “Separation of Powers in a Presidential Government” (1981) Public Law Journal 105

[12] The presidential constitution of Nigeria [1982] pp. 32-33

[13] See section 20, 24, 28, and 43 of the constitution

[14] See section 65, 69, 70, 106, 110, 221 of 1999 constitution.

[15] See pt. 1 and 2 second schedule 1999 constitution

[16] See section 6(1) -(6) 1999 constitution

[17] See section 4(8) (9) 1999 c0nstitution

[18] supra

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